Members of the Ukrainian Emergencies Ministry work at the crash site of Malaysia Airlines Flight MH17 near the village of Hrabove in the Donetsk region of Ukraine in 2014.  Picture: REUTERS
Members of the Ukrainian Emergencies Ministry work at the crash site of Malaysia Airlines Flight MH17 near the village of Hrabove in the Donetsk region of Ukraine in 2014. Picture: REUTERS

Dallas/Amsterdam — On a sunny July afternoon in 2014, a Russian-made surface-to-air missile detonated just feet away from a Malaysia Airlines flight at its cruising altitude.

The explosion sent hundreds of pieces of high-energy shrapnel through the Boeing 777, which broke apart and crashed in farmland in eastern Ukraine. All 298 people aboard were killed.

Three years later, the families of the passengers and crew still await a judicial reckoning, one which has been stymied by Russia’s efforts at the UN to block an international tribunal modeled after the one used in the 1988 terrorist bombing of a Pan Am flight over Scotland.

This week, the five countries investigating the destruction of Flight MH17 said that a criminal trial, whenever it occurred, would be held in the Netherlands, home to almost 200 of the victims.

"With this decision, we are taking a next step on the way to uncover the truth, the prosecution of suspects, and satisfaction for the bereaved," said Dutch Prime Minister Mark Rutte.

The Joint Investigation Team, which also includes Australia, Belgium, Malaysia and Ukraine, is continuing to pursue those responsible for the act and to identify individual suspects. Officials didn’t say when a trial may start; the group has said it’s examining about 100 people of interest in the case.

"We have to keep faith that [a trial] will happen, but it will not happen within six months and it will not happen in a year," said Dennis Schouten, chairman of the MH17 Air Disaster Foundation. His brother-in-law, Donny Djodikromo, 37, and Djodikromo’s wife, Anelene Misran, 41, were on the Malaysia flight.

"Of course, I would like it to be next week, but that’s not going to happen."

While choosing a venue for a future trial may seem incidental, the announcement, near the disaster’s third anniversary, shows a recognition that closure is needed and that the public needs to know a resolution is still being pursued.

Whether it will ever be reached is uncertain. The probe has been grinding forward at a glacial pace, thanks to the difficulty in ascertaining who exactly directed the missile system from the battlefields of eastern Ukraine.

"This is a story about the limits of what can be done" in civil law, said Heidi Li Feldman, a professor at Georgetown University Law Center specialising in torts. "The case presses up against any available legal structures for either compensating the families with money or holding wrongdoers accountable in a criminal setting."

Ukraine has sued Russia in the International Court of Justice, the UN’s judicial body in The Hague, seeking an end to Russian support for rebels in its eastern region and to state discrimination in Crimea, which Russia annexed in early 2014. Part of that legal action requests reparations from Russia for allegedly shooting down MH17, which Ukraine calls "an offence against humanity."

In April, the court declined to label Russia a state sponsor of terrorism but granted Ukraine’s request that Russia end racial bias against ethnic people in Crimea. The ruling did not cite the airline catastrophe.

Meanwhile, an Ohio aviation attorney by the name of Jerry Skinner filed a civil rights suit in the European Court of Human Rights on behalf of 31 families who lost loved ones in the plane’s downing.

The suit, filed last summer in France, names Russia and President Vladimir Putin as defendants and seeks $10m in damages for each victim. The court enforces the European Convention on Human Rights, overseen by the Council of Europe, of which Russia is a member state.

"Given the toughness of our opponent and their seeming unwillingness to work towards a just result, it’s going to take both of us each working our side of the case to come out with a favourable result for anybody," said Skinner, a Cincinnati lawyer who was also involved in lawsuits related to the Lockerbie case. In that incident, all 259 aboard were killed, along with 11 people on the ground. It took 11 years for a Scottish criminal tribunal, held at a US military base in the Netherlands, to convene on the matter.

Justice in an aircraft incident "is a 10-year process, not a two-year process," he said.

The Malaysia flight was over the conflict zone of eastern Ukraine on July 17, 2014, three hours into a 12-hour trip from Amsterdam to Kuala Lumpur when it was destroyed. It was cruising at 33,000 feet, or 1,000 feet above the altitude restriction that air traffic controllers had placed over the region due to fighting between Ukrainian-and Russian-backed forces. In previous months, the pro-Russian groups fighting around Donetsk had shot down several government military aircraft at lower altitudes.

Investigators have had satellite and other imagery to work with, along with social media and telephone data collected by government intelligence services. More than two years after the downing, in September 2016, Dutch investigators concluded that the jumbo jet was shot down by a Russian BUK missile system launched from rebel territory in eastern Ukraine, a system they said had been sent from Russia and shifted back several times.

Russia, which has denied any wrongdoing, said its own inquiry found that the missile had been fired from Ukrainian territory controlled by the Ukrainian government. It has also suggested that Ukrainian fighter jets could have downed the commercial flight.

The investigation team publishes a periodic online magazine to update families about the status of the probe. "Unfortunately, we must continue to test your patience," the team wrote in May. "We do realise that this can be hard for you. We assure you that we will remain committed to bring this important investigation to a successful conclusion."

"They’ve got to keep the public pressure on because that is what finally made the Lockerbie case move forward — this glaring impunity," said Beth Van Schaack, a professor at Stanford Law School and a former State Department official who has blogged about the MH17 case. "People kept the fight alive, and eventually they were able to take the case forward." Justice in the aircraft incident, she said, "is a 10-year process, not a two-year process."

Identifying people who were directly involved, such as fighters on the ground who manned the missile system, is likely to be the key to any successful lawsuit, Feldman, the Georgetown professor, said.

Judgments against unknown defendants tend to be relatively useless in terms of collecting damages or holding someone responsible. "From a practical perspective ... there’s no viable suit against unidentifiable people," Feldman said. To that end, investigators have also issued a call for witnesses to come forward.

The governments pressing for a prosecution want a list of "four or five" defendants, said Skinner, the Ohio lawyer, further opining that Russia may consider negotiating the "sacrifice" of some alleged perpetrators if it wins concessions on economic sanctions. Still, if any of the named defendants are Russian, it will be highly unlikely they will appear for a Dutch trial, given that Russia’s constitution bans extradition of its citizens for trial abroad.

Yet even a trial of named defendants in absentia would provide some justice for victims and their families, said Schouten, chairman of the MH17 foundation, who lives in Papendrecht, near Rotterdam.

"You want to have the whole story in front of a judge, and you want to have everything correctly done. You want to have the names, what happened, who did this, what chain of command was in charge of this strategy, how did it all go," he said. "Of course, you would like to bring them over to the Netherlands and get them sentenced for jail time, or whatever the Dutch court will decide. But that is something that is not going to happen very fast."

He notes that a conviction in absentia does have some teeth: "Their travel options are limited, because you can’t go anywhere. There are international warrants for your arrest."

Given the players, geopolitics — not litigation strategy — may determine the fate of the MH17 investigation. Skinner noted the role that easing sanctions had played in persuading Libya to turn over suspects in the Lockerbie case. The US and EU have slapped Russia with sanctions over its annexation of Crimea, penalties Moscow would very much like to see lifted.

"We don’t know if the Dutch have had any luck in convincing the Russians to produce people for trial," Skinner said, noting that a trial in absentia has political value, both to shame the accused and their alleged enablers, and to assuage victims’ families. It allows prosecutors to lay out their case and put "facts in front of the world, and that is something that the families may want."

"It’s an opportunity to have that day in court, but not as satisfying as a day in court with defendants," said Stephen Rapp, the former US ambassador at large for Global Criminal Justice during the Obama administration and former prosecution chief for the criminal tribunals that followed the genocide in Rwanda. "Will people face justice in this case? Yes, I’m certain of it."

The lawsuit pending in Europe will soon add as plaintiffs 15 to 20 more people from England, Germany, the Netherlands and Scotland, Skinner said Wednesday in a telephone interview.

He also filed separate lawsuits against Malaysia Airline System in Kuala Lumpur, Australia, and New Zealand. Malaysia Airlines has "reached amicable and confidential settlements" with most of the family members who sued, spokesperson Khairunnisak Dzun Nurin said Friday in an e-mail.

The carrier would continue to explore settlements of remaining suits, she added, and had "full confidence that the prosecution will hold the perpetrators responsible for the disaster to account, and that justice for our colleagues, passengers of flight MH17, and their families will be delivered."

For his part, Skinner said he planned to add to the public pressure by preparing an "open letter to Vladimir Putin," in newspapers in Ukraine and several other countries next week, to suggest ways of finding justice in the incident.

Four days after MH17 was shot down, the UN Security Council unanimously supported a resolution that called for the actors to "be held to account and that all states co-operate fully with efforts to establish accountability." In its resolution, possibly anticipating a prolonged process, the council also declared its intention "to remain seized of the matter."

Bloomberg

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